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SARS’ public apology to employees adversely affected by its action

SARS’ public apology to employees adversely affected by its action

10 November 2022 – Media statement and public apology to former SARS employees who were adversely affected by actions taken by SARS, and certain third parties, during 2014 – 2018.

As a further milestone in its journey to rebuilding public confidence and trust, SARS is pleased to announce that it has settled with former employees who were adversely affected by events that unfolded during the capture of SARS between 2014 and 2018.

Commissioner Kieswetter, on behalf of SARS, tenders a heartfelt public apology to its former employees for the organisation’s actions and omissions that had such a devastating and profound impact on their lives. SARS deeply regrets the hurt, pain and suffering visited on them and their families as a result of certain actions implemented by SARS in this period.

The settlements give effect to one of the recommendations of the Commission of Inquiry into Tax Administration and Governance by SARS (Nugent Commission) which found that there had been a massive failure of integrity and governance at SARS under the tenure of the erstwhile SARS Commissioner, Mr Tom Moyane.

After an extensive enquiry into the matters that transpired at SARS, including the allegations that a unit, set up in 2008 to counter the illicit economy, had been established unlawfully, the Nugent Commission found in 2018 that there was no basis for the allegations.

This finding was further supported by a number of important developments that have occurred over the past few years. This includes the fact that:

  • The Sunday Times whose reporting fueled the false “rogue unit” narrative retracted all their published reports and issued apologies for publishing the allegations.
  • KPMG retracted the conclusions and recommendations of its report into the matter.
  • The SARS Advisory Board chair, Judge Frank Kroon, retracted his findings regarding the unlawfulness of the establishment of the unit.
  • The High Court set aside the Inspector-General of Intelligence Report into the matter; and
  • The Public Protector’s remedial action in her report dealing with the matter was declared unlawful and set aside by the High Court (Gauteng Division) in 2020, which, amongst others, relied on the KPMG report, the Sikhakhane report and the report of the Inspector-General of Intelligence. The High Court found that the Public Protector had failed to conduct her investigations in a manner befitting that office. In so doing, the Public Protector acted in total disregard of the values enshrined in Sections 181(1)(a) and 182 of the Constitution, which call upon the Public Protector to be impartial and exercise her powers and perform her functions without fear, favour or prejudice. The Court also ordered punitive costs against the Public Protector and Adv Busisiwe Mkhwebane personally, jointly and severally. In September 2021, two judges of the Supreme Court of Appeal dismissed the Public Protector’s application for reconsideration of her petition for leave to appeal the High Court judgment. The Public Protector applied to the Supreme Court of Appeal (SCA) president for reconsideration of the dismissal of her appeal. On 1 February 2022, Supreme Court of Appeal (SCA) president also dismissed the Public Protector’s application for reconsideration of the dismissal of her appeal. The Public Protector then appealed to the Constitutional Court. On 10 November 2022, the Constitutional Court unanimously refused the Public Protector’s application for leave to appeal the judgment of the High Court, which puts an end to the discredited narrative around the investigative unit.

The Nugent Commission in its final report recommended that SARS should consider reparations to current and former employees, not necessarily pecuniary in nature, who were negatively affected by actions taken by SARS as a consequence, amongst others, of the Sikhakhane and KPMG reports.

Upon his appointment in May 2019, Commissioner Kieswetter found the situation at SARS to be much worse than even reflected in the Nugent Commission report. He implemented a host of measures to stabilise the workforce, restore staff morale and re-establish trust in the organisation.

The measures implemented included:

  • A pastoral and “listening” campaign aimed at giving staff an opportunity to share and reflect on their experiences, the reinstatement of “supernumerary” employees in their previous or, alternatively, in meaningful roles and  re-employment for some specialist employees who left SARS between 2014 and 2018.
  • A review of external and internal investigations, disciplinary and other employment-related actions that may have been unwarranted was carried out and all these matters have been closed.
  • The finalisation of a reparations process for current staff whose careers/positions at SARS were negatively affected and implemented a range of remedial measures.

In 2021, pursuant to the developments discussed above, Commissioner Kieswetter appointed an independent Advisory Committee comprising two eminent jurists, Professor Thuli Madonsela (chair) and retired Constitutional Court Judge Johan Froneman, to advise him on the feasibility of reparations for former SARS employees who were specifically impacted by the false allegations that they were members of or associated with an investigative unit that was “rogue” and which acted illegally.

The Advisory Committee’s mandate was to establish an administrative process that was pastoral and which fosters healing, reconciliation, and remedial action that is fair, just and equitable through the mechanism of restorative justice. The Advisory Committee submitted its report to SARS in March 2022 and its recommendations were accepted by the Commissioner.

Commissioner Kieswetter, on behalf of SARS, said: “I acknowledge the harm caused to the organisation and to those former employees closely associated with the establishment, management and operation of the investigative unit, as well as their families. I sincerely hope that with the conclusion of this procedure, the affected individuals and their families may experience a sense of closure and continue their own journey to heal and restoration.

SARS recognises that both the Sikhakhane and KPMG investigations and the ensuing findings and recommendations were deeply flawed, and SARS has since made it clear and reiterates once again that it will not use them for any purpose. SARS recognises that these reports should not have been used as a basis for any of the actions taken against the affected participants and other SARS officials.

Unfortunately, because SARS itself became the victim of state capture in this period, SARS acknowledges that it failed to defend and protect its employees when the false allegations and imputations of wrongdoing resurfaced in October 2014 and in the subsequent years thereafter.

SARS has also tendered a private apology to each of the participants and their families for the ordeal they had endured and the harm caused to them between 2014 to 2018 and a considerable period thereafter.

In line with the recommendations of the Advisory Committee, SARS has paid fair and reasonable pecuniary compensation (general damages) for the infringement of the participants’ personality rights as well as compensation arising from loss of employment were this was appropriate.

Commissioner Kieswetter extends his thanks to the Advisory Committee for its commitment to the reparations process and, particularly, for the leadership and wisdom it brought to bear in ensuring the reparations process successfully fulfilled its aim of ensuring restorative justice to the parties affected whilst also taking the interests of SARS, the institution, into account.

Commissioner Kieswetter also thanks the participants for keeping faith with the process, even when it was difficult to do so, and for their cooperation in bringing the process to a successful conclusion. Although this reparations process cannot fully atone for the professional and personal harm they have suffered over a prolonged period, SARS hopes this reparations process brings some measure of healing and closure for the former SARS employees and their families and enables both parties to move forward constructively.

The following former employees have agreed to their names being made public as part of this apology:

Ivan Pillay, Peter Richer, Andries Janse van Rensburg, Johann van Loggerenberg, Adrian Lackay, Pieter de Bod, Gilbert Gunn, Nkele Pitsi, Siobhan Wilson, Telita Snyckers, Charl Fourie, Gene Ravele and Marika Muller.

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